Attorneys, Scholars Raise Questions about Constitutionality of Colorado Death Penalty

Colorado’s death penalty is not only massively expensive, critics say it is also unconstitutional because it is so randomly sought.

A study released last year by DU Law Professors Justin Marceau and Sam Kamin showed that from 1999 to 2010, 92 percent of 544 Colorado murders had at least one of the aggravating factors that need to be present for a defendant to be eligible for death, yet the death penalty was sought in only five of those cases — less than 1 percent.

One of his attorneys, David Lane, argues that while the Supreme Court has instructed states to narrow the field of who qualifies for the death penalty, Colorado has done the opposite, creating so many aggravating factors that death could be sought in just about every murder committed in Colorado. With 92 percent of Colorado murder cases being eligible for the death penalty, but with death being sought so rarely in the state, Lane says, “The only check is prosecutorial discretion.”

He notes that the only Colorado death filings recently have come from the 18th Judicial District of Douglas and Arapahoe counties where he says prosecutors “are in love with the death penalty.” With only one judicial district ever seeking the death penalty, Lane says the death penalty is pursued randomly in Colorado, thus making it unconstitutional.

Colorado executed its first murderer in 1859 and killed an average of nearly one man a year for the next century. Not one woman has been executed in the state. Today, Colorado has three men on death row, one of whom, Nathan Dunlap, has been there for nearly 20 years, roughly half his life. The United States Supreme Court last week refused to hear his appeal. If the governor does not act, Dunlap could be executed in the next few months.

“This (Montour) case could overturn the death penalty,” Lane says about the Douglas County case that could be decided soon. It’s possible Lane is right, but it seems more likely that concerns raised by this case — and concerns about how much money the state spends chasing ever more elusive executions — could lead the Legislature to abolish the death penalty. A bill to do just that is expected within the next week or two.

Death penalty attorney Hollis Whitson, speaking last week at a fundraiser for Coloradans for Alternatives to the Death Penalty, said she expects the state to tire of the death penalty money drain soon. “They aren’t buying executions. All they are really doing is paying lawyers,” she said. She is one of three attorneys currently working full-time on Montour’s defense. She has been on the case for three years. She took her first Colorado death penalty case in 2003 and says death penalty defense has been practically her entire practice since then, with all of that time paid for by state taxpayers.

If an abolition bill is introduced this year, it wouldn’t be the first time the legislature tried to end capital punishment in Colorado. The death penalty has had vocal opponents since its earliest days. As recently as 2009, a bill to abolish the death penalty passed the House and fell one vote short in the Senate.

State Sen. Lucia Guzman, D-Denver, says a bill will be introduced. “It is not a question of if but of when,” she said. Guzman said she will co-sponsor the bill in the Senate with Sen. Morgan Carroll, D-Aurora. Rep. Claire Levy, D-Boulder, says she will be a sponsor in the House.

“We’re just putting the finishing touches on it,” Guzman says. “The odds of it passing are very good. We feel like we have the votes in the Senate.” She says she thinks it will in the House also, but that it could be close.

She says a lot of newly elected Democrats are antsy about it. “They ask ‘should we do all this–gun bills, civil unions and the death penalty?”

As to whether Gov. John Hickenlooper would sign a death penalty abolition bill, his office isn’t saying. Guzman says Hickenlooper has expressed support for it in the past but may be waffling. “If he doesn’t sign it, that is his decision. There is nothing we can do about that.”

The Supreme Court and the Constitution
Cruel and unusual punishments are prohibited by the 8th Amendment to the United States Constitution, and it is that clause that the Supreme Court used to rule Georgia’s death penalty unconstitutional in 1972. The court did not rule that death itself was an unconstitutional punishment, nor did it rule that any particular method of execution was cruel and unusual.

In 1972, the Supreme Court ruled that it was Georgia’s method of determining who would be put to death that was unconstitutional.

Georgia, in 1972 had a record of sentencing to death less than 20 percent of those people who under the law would have qualified for the death penalty. The Court found essentially that the punishment of death was being delivered almost randomly and said that is what made it unconstitutional.

In the wake of that ruling in Furman v. Georgia, every state with a death penalty took a timeout. Many states, like Colorado — and Georgia — rewrote their death penalty statutes so as to better meet constitutional standards.

Georgia’s death penalty was back in front of the Supreme Court in 1976 with Gregg v. Georgia. The Court, in that case, heard challenges to a number of states’ death penalties with the Gregg case in the lead. Georgia’s new death penalty was upheld by the Court.

Colorado reinstituted the death penalty in 1979, writing statutes similar to those upheld in Gregg, but has executed only one person since then — Gary Davis in 1997.

In Colorado, to be eligible for a death sentence one must commit felony murder and at least one of 17 aggravating factors must be present.

Unitarian minister and anti-death-penalty activist Roger Butts argues that randomness plagues Colorado’s imposition of the death penalty. He notes that all three men on Colorado’s death row are from Arapahoe County. “There seems to be an arbitrary nature to it. If those crimes had been committed in Boulder County, those men would not be on death row because (Boulder County DA) Stan Garnett would never have pursued the death penalty,” he said while leading a discussion at a church.

Garnett told The Colorado Independent that while he does consider the death penalty when trying cases that would qualify, the randomness of when the death penalty is sought is troubling to him as well.

“My… concern is the randomness. Most murders, charged as first degree, could qualify to seek the DP under the Colorado statutory scheme,” Garnett said by email. “Though Boulder County has had plenty of heinous murders over the years, there has never been a death verdict imposed here in the nearly 140 years since statehood (the one time it was sought in the 20th JD, in 1978, the case plead out during jury selection due to the unwieldiness of seating a death qualified jury). The 18th JD (Arapahoe/Douglas County), on the other hand, has several pending death cases currently… for murders that are not significantly different than what we prosecute in Boulder. What is the point of a penalty that is only sought in a tiny percentage of the cases where it could be sought, or where geography is a factor in whether it is sought? Obviously, the risk of racial or other subjective factors being considered (or appearing to be considered) in selecting who is put to death is significant.”

“I think I would probably support an effort to repeal the death penalty,” Garnett said in a telephone interview. “My view of the death penalty is similar to my view of marijuana. The way we have done it just hasn’t worked.”

Late U.S. Supreme Court Justice William Brennan, writing one of the majority opinions in the 1972 case that temporarily ended capital punishment in the U.S., said that it was arbitrary to assign the harshest punishment available (death) to some but not to others who had committed similar crimes.

Brennan continued that “when a severe punishment is inflicted in the great majority of cases” in which it is legally available, there is little likelihood that the State is inflicting it arbitrarily. If, however, the infliction of a severe punishment is “something different from that which is generally done”… there is a substantial… likelihood that the State, contrary to the requirements of regularity and fairness…is inflicting the punishment arbitrarily.”

“When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied.

…

“Although there are no exact figures available, we know that thousands of murders and rapes are committed annually in States where death is an authorized punishment for those crimes. However the rate of infliction is characterized — as “freakishly” or “spectacularly” rare, or simply as rare — it would take the purest sophistry to deny that death is inflicted in only a minute fraction of these cases. How much rarer, after all, could the infliction of death be?

“When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system. The States claim, however, that this rarity is evidence not of arbitrariness, but of informed selectivity: death is inflicted, they say, only in “extreme” cases.”

John McAdams, a political science professor at Marquette University, who writes regularly in support of the death penalty, argues that it is unrealistic to say penalties for lawbreaking need to be consistent. “All punishments are somewhat arbitrary, especially when you consider that most of this is decided at the county level. Because some people get off with less punishment does not mean we should ratchet down all punishments. It is impossible to deliver equal justice in every case,” he said.

“We’re going to get abolition in Colorado. It’s going to happen,” said Whitson. “Everyone is tired of spending money on lawyers.”

She said that abolishing the death penalty is just step one. After that, she added, Colorado needs to spend the money saved on better training for police and prison guards, better mental health care, better protective services for children and other programs to reduce violence in society.

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About the Author

Scot Kersgaard

Scot Kersgaard has been managing editor of a political newspaper, editor and co-owner of a ski town newspaper, executive editor of eight high-tech magazines (where he worked with current Apple CEO Tim Cook), deputy press secretary to a U.S. Senator, and an outdoors columnist at the Rocky Mountain News. He has an English degree from the University of Washington. He was awarded a fellowship to study internet journalism at the University of Maryland's Knight Center for Specialized Journalism. He was student body president in college. He spends his free time hiking and skiing.